Militia: The Primacy of Social Duty Over Individual Right

“Rhode Islanders asserted that, “all Countries have a Right to the personal service of [their] Inhabitants, the greatest Exertions of whom, in their different Capacities, are especially requisite for the Defence and Protection of their Lives, Liberties and Properties, during the actual Invasion of Enemies”. Therefore, “a Refusal or withdrawing” of personal service in times of public danger stands squarely “against the Rights of human Society”, no less than “being voluntarily adherent to public Enemies, by giving them Aid or Comfort, or the seeking of their Protection, [which] amount to a total Renunciation of all former Rights, Privileges and Inheritances whatever”.

Militia: The Primacy of Social Duty Over Individual Right

The principle of a universal legal duty for individual militia service persisted even after the Colonists began enacting their own legislation, and then set off on the path that would separate them entirely from the Crown. In that most perilous of times, just before and through the War of Independence, Rhode Islanders still, perhaps especially, knew that “the Preservation of this Colony, in Time of War, depends, under God, upon the military Skill and Discipline of the Inhabitants”. (footnote 1) And the continuity of this principle over so many decades proves that the basis for Rhode Island’s power to require her inhabitants to serve in a Militia, and their corresponding duty to do so, was understood by all as transcending mere Royal prerogative or the positive laws of even popular, representative legislatures. (footnote 2)

Rather, both the Colony’s legal power and her inhabitants’ corresponding duty found their geneses and justifications in the realization that “every Principle, divine and human, require us to obey that great and fundamental Law of Nature, Self-Preservation”. (footnote 3) This was the law of which Locke had taught that “the Society can never, by the fault of another, lose the Native and Original Right it has to preserve it self”. (footnote 4) It was the law Blackstone described as “justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society”. (footnote5) It was foremost among “the Laws of Nature and of Nature’s God” that the Declaration of Independence invoked for the right of Rhode Island and her sister Colonies “to assume among the powers of the earth” a “separate and equal station”—certainly

(i) the necessary means to secure the right to “Life”, which the Declaration identified as first among those “certain unalienable Rights” with which “all men * * * are endowed by their Creator”, and

(ii) among the “just powers [derived] from the consent of the governed” that “Governments” may and should exercise “to secure these rights”.

And, operating perforce of and through the Declaration, it was the right upon which the authority, power, and permanence of the Constitution would thereafter rest, encapsulated in the Second Amendment’s precept that “[a] well regulated Militia” is “necessary to the security of a free State”, and echoed in the preamble of a then-contemporary Rhode Island Militia Act, that “the Security and Defence of all free States essentially depend, under God, upon the Exertions of a well regulated Militia”. (footnote 6)

Because “that great and fundamental Law of Nature”, “the Native and Original Right” of self-preservation, is the foundational norm of society, can never be lost by society, and cannot be “taken away by the law of society” from a single innocent individual, then also its enforcement on society’s behalf cannot be denied, flouted, shirked, or evaded by any individuals living within society, whether private citizens or public officials. So, being establishments that derive their existence from the collective right of self- preservation in “the Laws of Nature and of Nature’s God”, the Militia were not simply expedient, but absolutely necessary. For, as Blackstone observed in reference to England’s militia,

“[t]his is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes [of Parliament] declare is essentially necessary to the safety and prosperity of the kingdom”. (footnote 1)

Rhode Islanders of the founding era knew that, as invoked by society, “th[e] great and fundamental Law of Nature” compels a near-universal duty of service and sacrifice (even if not a strict equality thereof) among all those who constitute society and who benefit from their membership in it. So they held that:

WHEREAS the preservation of this State and the maintenance of its liberties, at all times depend, under God, in a great measure, upon an acquaintance with military discipline * * * it becomes the indispensable duty of every American citizen, to place himself in a situation where he can be useful in repelling the attacks of its enemies. (footnote 1)

Footnotes:

1.) EN-32 — An Act to incorporate the Bristol Grenadiers, At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Ninety-nine, in Rhode Island Acts and Resolves, Volume 18 [20], at {23}. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 97.

Rhode Islanders appreciated that none of their fellow citizens should be suffered to claim an individual right to “avoid[ ] contributing their equal and necessary proportion for the defence of our rights, privileges and estates * * * from which they do, and will, derive, in all respects, equal benefit and protection with other subjects of this state, not exempted from personal military service”. (footnote 1) Quite the contrary: Rhode Islanders asserted that, “all Countries have a Right to the personal service of [their] Inhabitants, the greatest Exertions of whom, in their different Capacities, are especially requisite for the Defence and Protection of their Lives, Liberties and Properties, during the actual Invasion of Enemies”. Therefore, “a Refusal or withdrawing” of personal service in times of public danger stands squarely “against the Rights of human Society”, no less than “being voluntarily adherent to public Enemies, by giving them Aid or Comfort, or the seeking of their Protection, [which] amount to a total Renunciation of all former Rights, Privileges and Inheritances whatever”. So, to Rhode Islanders, those who shirked their duty to provide personal service for their society’s protection were no better than those “who * * * hath withdrawn * * * into Parts and Places under the acknowledged Authority and Dominion of the[ir country’s enemies]”—and who on that account “shall be held, taken, deemed and judged to have voluntarily renounced all civil and political relation to each and every of the * * * United States, and be considered as an Alien”. (footnote 2)

Footnotes:

1.) EN-33 — An Act in addition to an act, entituled “An act for the relief of persons of tender consciences; and for preventing their being burthened with military duty”, Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at South Kingstown, on Thursday, the 17th day of April, 1777, in Rhode Island Records, Volume 8, at 204. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 97.

2.) EN-34 — An ACT for the confiscating the Estates of certain Persons therein described, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {24-25}. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 97-98.

In Rhode Island, as in all the other Colonies (and later, independent States), the Militia were always integral parts of the communities’ governmental structures. The Militia were the institutions in and through the operation of which most Rhode Islanders, as well as the citizens of other Colonies and then independent States, developed “an acquaintance with military discipline” through their own personal service. Such establishments—a refusal to serve in which in times of extreme public danger could be tantamount to treason. (footnote 7)

1.) EN-29 — AN ACT establishing an Independent Company, by the Name of The Light-Infantry for the County of Providence, At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode- Island, and Providence Plantations, in New-England in America, begun and holden, by Adjournment, at Newport, within and for the said Colony, on the Second Monday in June, One Thousand Seven Hundred and Seventy- four, in Rhode Island Acts and Resolves, Volume 7, at {36}. Accord, e.g., Proceedings of the General Assembly of the State of Rhode Island and Providence Plantations, at Providence, on the last Monday in February, 1792, in Rhode Island Records, Volume 10, at 468 (The Governor’s Independent Company of Light Infantry), 469 (Scituate Light Infantry), and 470 (Federal Protectors).

3.) EN-30 — At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode-Island, and Providence Plantations, in New-England in America; begun and holden by Adjournment at Providence, within and for the Colony aforesaid, on the Third Monday in August, One Thousand Seven Hundred and Seventy-five, in Rhode Island Acts and Resolves, Volume 7 [8], at {103}. Accord, Rules and Orders of the Army of Observation, of the Colony of Rhode Island, Proceedings of the General Assembly, held for the Colony of Rhode Island and Providence Plantations, at East Greenwich, on the second Monday in June, 1775, in Rhode Island Records, Volume 7, at 340.

6.) EN-31 — An ACT for the better forming, regulating and conducting the military Force of this State, At the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {29}.

7.) Id., at 2, page 99.

"A well regulated Militia being necessary to the security of a free State" (2nd Amendment)

The constitutional institution of "homeland security" is "a well regulated Militia" based upon "the right of the people to keep and bear Arms"